F I L E D

United States Court of Appeals

Tenth Circuit

JUL 16 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BUICK MOOMCHI,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS;

STATE OF NEW MEXICO; KARL L.

SANNICKS, individually and in his

capacity as the Secretary of

Corrections; CHARLES KING,

individually and in his capacity as

Mental Health Director, New Mexico

Department of Corrections; GEORGE

E. SANCHEZ, individually and in his

capacity as Acting Health Program

Director, Department of Corrections;

VIRGIL GARCIA, individually and in

his capacity as the Equal Employment

Officer, New Mexico Department of

Corrections; KATHLEEN NESTOR,

individually and in her capacity as the

Mental Health Services Director of the

Penitentiary of New Mexico, and as an

agent of the State of New Mexico;

JOHN/JANE DOE, 1, as persons

associated with one or more of the

above named defendants, although

unknown at this time,

Defendants-Appellees.

No. 96-2245

(D.C. No. CIV-96-163)

(D. N.M.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff appeals the district court’s dismissal of his employment

discrimination action, with prejudice, pursuant to Fed. R. Civ. P. 37(b)(2)(C), as a

discovery sanction. Because, in doing so, the district court considered the

appropriate factors and did not otherwise abuse its discretion, see Ehrenhaus v.

Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992); see also Jones v. Thompson,

996 F.2d 261, 264-66 (10th Cir. 1993), we affirm the dismissal. 

Plaintiff also challenges the district court’s disposition of a number of

pretrial matters. The district court did not err in denying plaintiff’s motion to

remand this action to state court. Plaintiff’s complaint, which included causes of
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action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2000d and 2000e, and the

United States Constitution, set forth “a claim or right arising under the

Constitution, treaties or laws of the United States,” 28 U.S.C. § 1441(b), and was,

thus, removable to federal court. Further, defendants filed a timely notice of

removal, properly measured from the time plaintiff served his complaint alleging

these federal claims. See id. § 1446(b). 

The district court did not abuse its discretion in denying plaintiff’s default

judgment motion, see Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990), in

light of defendants’ timely filed answer, see Fed. R. Civ. P. 81(c). Nor did the

district court abuse its discretion, see Rucks v. Boergermann, 57 F.3d 978, 979

(10th Cir. 1995), in denying plaintiff’s motion for appointment of counsel. The

district court also did not err in denying plaintiff’s motions to disqualify

defendants’ counsel. 

Alleging that the magistrate judge was biased against him, plaintiff, on

several occasions, requested the magistrate judge’s recusal, although he did not

specify the statutory authority upon which he was relying. See generally

28 U.S.C. §§ 144, 455(a), (b)(1) (addressing grounds, procedures for recusal

because of bias or prejudice). The district court did not abuse its discretion in not

granting plaintiff’s recusal requests, see, e.g., United States v. Burger, 964 F.2d

1065, 1070 (10th Cir. 1992), both because those requests were untimely, see, e.g.,
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Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (§ 144); Green v.

Dorrell, 969 F.2d 915, 919 (10th Cir. 1992) (§ 144); Willner v. University of

Kan., 848 F.2d 1020, 1022-23 (10th Cir. 1988) (§ 455(a), (b)(1)), and because he

failed to make a sufficient showing of either the actual or apparent bias or

prejudice of the magistrate judge, see, e.g., Willner v. University of Kan., 848

F.2d 1023, 1026-28 (10th Cir. 1988) (§§ 144, 455(a), (b)(1)). 

Plaintiff failed to raise, in the district court, his arguments that the

imposition of sanctions subjected him to double jeopardy and that he was entitled

to the appointment of counsel because he faced possible criminal contempt

sanctions. We, therefore, need not address these grounds for relief. See, e.g.,

Tilton v. Capital Cities/ABC, Inc., No. 96-5041, 1997 WL 332430, at *3, *4, *8

(10th Cir. June 18, 1997).

The judgment of the United States District Court for the District of New

Mexico is, therefore, AFFIRMED. Plaintiff’s pending motion to disqualify

defendants’ counsel is DISMISSED. His remaining pending motions, including

his request for oral argument and for the imposition of sanctions against

defendants’ attorneys, are DENIED.

Entered for the Court

David M. Ebel

Circuit Judge